Weekly Case Summaries: September 13, 2013

Court of Criminal Appeals

Staley v. State & Ex parte Staley

Nos. AP-76,798 & 76,868        9/11/13

Issue:

Does the “competency-to-be-executed” statute, CCP art. 46.05, allow for the execution of a mentally ill inmate previously found incompetent who becomes competent only after he is involuntarily medicated pursuant to a court order?

Holding:

No. The statute grants the trial court jurisdiction and authority to periodically order re-examination of an incompetent defendant to determine whether he is no longer incompetent to be executed, but it does not permit an order for involuntary medication. Because the defendant would not be competent to be executed without involuntary medication, he may not be executed under the federal and Texas constitutions.
Read opinion

Dissent (Keller, P.J.):

The trial court does have inherent authority to order involuntary medication, and the manner in which a person becomes competent to be executed is irrelevant under CCP art. 46.05.
Read dissent

Dissent (Meyers, J.):

The trial court has inherent authority to order involuntary medication to enforce its judgment, and such an order does not violate the 8th Amendment.
Read dissent

Commentary:

The majority opinion mentions a method for forced medication that was not used in this case, but it is not one that a court can order in any event. The outcome of this case is disturbing—does it create a limbo where mentally ill inmates avoid punishment for their crimes and do not receive treatment for their illnesses? Moreover, will competency be a vehicle that is abused by litigants willing to do anything to avoid execution? After execution of the mentally retarded was abolished, there was a spike of bogus mental retardation claims—that is not an unlikely consequence of this decision. Whether it is constitutional to forcibly medicate these inmates so that they can be executed is controversial. It may take new legislation before we can resolve that question.

Henson v. State

No. PD-1249-12        9/11/13

Issue:

Must a defendant timely raise a speedy-trial claim in the trial court to preserve the issue for appeal? 

Holding:

Yes. The right to a speedy trial is not a systemic, waivable-only right because in some cases delay may actually benefit the defendant. Requiring the defendant to raise the issue in the trial court prevents him from sleeping on his rights and allows the court to grant the appropriate remedy before the expense of a trial and appeal have been incurred.
Read opinion

Dissent (Meyers, J.):

A preservation-of-error analysis is inappropriate because a speedy trial is a waivable-only right.
Read dissent

Commentary:

The appellate prosecutors in Texas can feel all warm inside. The writ prosecutors know they will just see this claim on down the road as “my lawyer screwed up and did not file a speedy trial motion.” This decision is consistent with modern jurisprudence on preservation of error.

Wade v. State

No. PD-1710-12        9/11/13

Issue:

Should the trial court have granted the defendant’s motion to suppress a pipe and methamphetamine found after a Terry frisk and search of the defendant’s truck based almost exclusively on his refusal to answer questions or permit a search of the truck?

Holding:

Yes. The consensual encounter escalated to a detention when the defendant was ordered out of his truck for a pat-down; the defendant’s nervousness, “strange” answers to questions, and refusal to continue engaging in the consensual encounter did not give the officer reasonable suspicion to detain him.
Read opinion

Commentary:

This is an interesting opinion on a Terry frisk gone wrong. Unfortunately, you have to read the whole opinion to have an understanding of the facts because the court spreads the facts throughout various parts of its opinion. Indeed, it almost appears that the court engaged in the sort of “divide and conquer” analysis that often lands lower courts in trouble. Where the game warden and lower courts seem to have gone wrong was interpreting the defendant’s questioning of the officer’s conduct as suspicious or dishonest. “Why are you questioning me” does not, by itself, add to an officer’s reasonable suspicion. The court also took issue with the game warden’s characterization of statements made by the defendant as “lies.” But the game warden explained that he disbelieved the defendant’s statement he was eating lunch because there was nothing in the truck that looked like lunch in progress. He also disputed the defendant’s statement he lived nearby because in fact he lived about 30 minutes away. It may be that the game warden could have given other testimony that would have helped this frisk survive scrutiny. For example, “When you find people at the boat ramp parking lot who don’t appear to be launching or recovering a boat, has it been your experience they are using the parking lot for illegal activity? Do people park there to use drugs? Do people park there to drink? Do people park there only to fish illegally or do something related to a boat?” A different outcome might have occurred had the encounter in question been at night rather than in the daytime. The court continues to struggle with characterizing this sort of police-citizen interaction.

Texas Courts of Appeals

Yon v. State

No. 12-12-00277-CR        9/4/13

Issue:

Was the ethanol in an alcoholic beverage given to a 16-month-old boy a deadly weapon as used in the commission of injury to a child?

Holding:

Yes. The State must show that the use or intended use of an object or substance is capable of causing death or serious bodily injury, not necessarily that it did. Here there was evidence that showed more than a hypothetical capability of causing death or serious bodily injury because the alcohol was shown to have a potency of 12.9 percent, and doctors testified the child lost upper airway control, which could have led to aspiration or death.
Read opinion

Commentary:

The defendant apparently forced or allowed a toddler to drink 8–10 ounces of liquor. Medical personnel were required to intubate the toddler so he could continue to breathe, and his blood alcohol content was considered toxic for a non-drinker. Thus, the evidence showed that alcohol as used was “capable” of causing death or serious bodily injury.

In re Texas Department of Public Safety

No. 05-13-00882-CV        9/5/13

Issue:

Must the trial court set aside its protective order preventing DPS from releasing the video of Randy Travis’ August 8, 2012, DWI arrest?

Holding:

Yes. The Attorney General ruled that while portions may be redacted, the video is public information that must be released. Government Code §552.002(b) makes it clear that a trial court has no jurisdiction to order DPS not to produce public information.
Read opinion

Commentary:

Whoa Nellie! This defendant tried to get a mini-expunction as part of his plea deal. DPS refused to put up with it and won its mandamus. DWI arrests are embarrassing, especially for public figures. But a court cannot order those records destroyed as part of its disposition of the case.

Freeman v. State

No. 05-12-00923-CR        9/10/13

Issue:

Is PC §33.021(a)(1)(A) (online solicitation of an individual who represents himself or herself to be younger than 17 years old) facially unconstitutional because it creates a strict liability offense and deprives the defendant of a mistake of fact defense?

Holding:

No. The statute does not violate substantive due process because the defendant’s knowledge of a victim’s age is not an essential element of certain sex crimes against minors. The statute is not overbroad for First Amendment purposes because the State has a “surpassing interest” in protecting the health and safety of children, and the defendant has no constitutionally protected right to communicate sexually explicit material to minors. Speculation that some applications of the statute may deprive defendants of a mistake of fact defense is not enough to show it is facially unconstitutional.
Read opinion

Commentary:

Sometimes it seems like the world was a more wholesome place before the Internet. The online solicitation statute survives two different constitutional challenges. Expect it to go up.

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